HKSAR v. BANGOURA CHARLES

CACC 281/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 281 OF 2016

(ON APPEAL FROM HCCC 5 OF 2011)

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REASONS FOR JUDGMENT

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Hon McWalters JA (giving the reasons for judgment of the court):

1.  The applicant seeks leave to appeal out of time against a sentence of 14 years’ imprisonment that was imposed on him on 23 February 2011, after he pleaded guilty before A Chan J (the “judge”) to one count of trafficking in a dangerous drug, namely 1 kilogramme of a mixture containing 0.62 kilogramme of heroin hydrochloride, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134. He filed his Form XI in which he sought an extension of time in which to apply for leave to appeal on 2 September 2016, around 5½ years’ out of time.

2.  At the hearing of the application we refused it and said we would hand down our reasons for doing so at a later date.  This we now do.

The background to the offence

3.  In the Summary of Facts that was used for the purpose of sentencing the applicant admitted that he is of Guinean nationality and that at around 7:30 pm on 19 June 2010, he arrived at the Hong Kong International Airport from Bangkok.  He was refused permission to land by immigration officers and when Customs Officers examined his baggage, they found 22 pellets of heroin in a shower gel bottle and 21 pellets of heroin in a baby powder bottle inside the applicant’s suitcase.  Suspecting internal concealment, the Customs Officers referred him to Queen Elizabeth Hospital for examination. 

4.  Between 20 and 22 June 2010, he discharged a total of 40 pellets of heroin.  The drugs found in the suitcase and those discharged by the applicant from his body were analysed by the Government Laboratory and found to be the quantity of dangerous drugs that is particularized in the charge.  The estimated street value of these drugs was HK$845,000. 

5.  In a post-recorded statement taken from the applicant on 20 June 2010, he admitted to ownership of the suitcase but denied knowledge of the drugs found in it. 

6.  In a record of interview taken later the same day, he admitted that he had met a Ghanaian man in Cambodia a month previously.  This man was named Anaco and on 19 June 2010, in Bangkok, Anaco gave him 40 pellets to swallow and a two-way air ticket between Hong Kong and Bangkok.  The applicant was promised a ticket from Bangkok to Africa and some money as a reward if the pellets were successfully conveyed to Hong Kong.  He said he forgot to ask Anaco what was contained in the pellets and did not suspect them to contain illegal substances. 

7.  In respect of the suitcase containing the two bottles he said that it was also given to him by Anaco and that he had no knowledge of the contents of the two bottles. 

8.  He claimed that he travelled to Hong Kong from Bangkok on business to buy mobile phones and laptops for re-sale in Africa and was intending to stay at Chungking Mansion.  There he would await a call from Anaco as he had no means, himself, to contact this person.

9.  The Summary of Facts concluded with an admission by the applicant that he was trafficking in the drugs.

The mitigation

10.  Mr Tracy, who appeared for the applicant at his sentencing hearing, informed the court that the applicant was a 30 years old, married man, with a 2 years old son.  He had lost contact with his family whilst in prison and this has added to his distress.  The applicant had a business dealing in second-hand mobile phones, for which he had initially gone to Thailand where eventually he stayed and got married.  He frequently visited Hong Kong due to his business. 

11.  In June 2010, he went to Cambodia to renew his Thai visa and whilst there he met the man Anaco.  The applicant’s business was not particularly profitable and with a family to provide for he was in need of extra money.  In these circumstances he was tempted by Anaco’s offer to take the drugs to Hong Kong for a financial reward.

12.  Mr Tracy said that the applicant readily accepted he was the carrier of the drugs but wished to emphasise that he was not a dealer in them and that he was remorseful for his actions.

The judge’s Reasons for Sentence

13.  In his Reasons for Sentence, the judge had regard to the sentencing guidelines for quantities of heroin over 600 grammes, which led him to adopt a starting point of 20 years’ imprisonment.  The judge then took into account the international element, as stipulated in the case of HKSAR v Abdallah Anwar Abbas[1], and enhanced his starting point by 1 year’ imprisonment to allow for this aggravating factor.  He then discounted this period by one-third to allow for the applicant’s guilty plea resulting in a final sentence of 14 years’ imprisonment. 

The application for an extension of time

14.  The importance of appeal time limits and of society’s interest in having finality in the criminal process were emphasized by Li CJ in comments he made in HKSAR v Hung Chan Wa & Anor[2]when he said at paragraphs 21 and 22:

“21. The avenue of appeal is provided for by statute for persons convicted of criminal offences. Various statutory provisions provide for appeals through the hierarchy of the court system. … These provisions lay down time limits for appeals and confer on the courts the discretion to extend time. (In this judgment, the term ‘appeal’ is used to include leave to appeal.) This arrangement is an important feature of any criminal justice system. It is in the interests of society for there to be finality in the criminal process. But the time limits for the purpose of achieving finality are not absolute. The courts have the discretion to relax the time limit where this is considered to be justified in the circumstances of an individual case.

22  While the question, whether time should be extended for an appeal against conviction is essentially a matter of discretion for the courts, it is of course not an unfettered discretion. The burden is on the defendant to justify exercise of that discretion in his favour.”

15.  In exercising this judicial discretion on whether leave should be given to appeal out of time the Court of Appeal will look at the length of the delay, the reasons advanced for the delay and generally the bona fides of the applicant.  Substantial grounds must be shown for the delay and the longer the delay the more onerous is the duty of the applicant.[3] 

16.  In his affirmation attached to his Form XI, the applicant said that he was advised by his counsel at the time that he was sentenced that there were no grounds of appeal against his sentence.  However, he came to doubt his counsel’s advice after uncovering other cases in the Hong Kong Law Reports and Digest and in a letter to the court filed on 9 January 2017, the applicant referred to three cases which he submitted provided more lenient sentences for a similar quantity of drugs.  At the hearing of his application for an extension of time he said he had nothing further to say.

17.  The applicant’s explanation does not come anywhere near justifying the 5½ years delay in applying for leave to appeal.  If such a submission was entertained, there would be no end to the appeal process and the important interest of society in having finality in the criminal process would be undermined.

18.  Nevertheless, notwithstanding the lack of merit in the explanation for the delay we shall, as is our practice, examine the submissions being advanced by the applicant in respect of the excessiveness of his sentence in order to ensure that, should we refuse his application for an extension of time, we would not be shutting out a substantial and plainly arguable ground of appeal.

The applicant’s grounds of appeal

19.  As mentioned above, in his letter filed on 9 January 2017 the applicant referred to three cases.  These were HKSAR v Kharim Mohamed Omari[4], where the defendant trafficked in 659.33 grammes of heroin for which a starting point of 20 years’ imprisonment was taken, enhanced by 6 months for the international element.  The second case is HKSAR v Rado Mary Litren Adhiambo[5], where the applicant pleaded guilty to trafficking in 420.39 grammes of heroin hydrochloride and 250.66 of monoacetylmorphine hydrochloride and the judge adopted a starting point of 20 years and 4 months’ imprisonment which he then enhanced by 6 months for the international element.  The third case is HKSAR v Fernando Mendes[6] which involved trafficking in 649.94 grammes of heroin with the judge adopting a starting point of 20 years’ imprisonment which he then enhanced by 1 year for the international element.  All three cases involved defendants flying in from overseas and being arrested at the Hong Kong International Airport. 

20.  At the hearing of his application he said he had nothing further to say in support of his proposed grounds of appeal.

The respondent’s submissions

21.  Ms Catherine Ko, Senior Assistant Director of Public Prosecutions, on behalf of the respondent, submitted that the applicant did not provide a reasonable or valid explanation for his substantial delay.  It was also submitted that the cases provided by the applicant, apart from HKSAR v Rado Mary Litren Adhiambo, had no bearing on whether the applicant’s sentence was correct.  In respect of the Rado Mary Litren Adhiambo case, Ms Ko drew to our attention that when this case went on appeal Pang J (as Pang JA then was) in giving the judgment of the Court of Appeal commented that “the enhancement of 6 months’ imprisonment to reflect the aggravating factor of the international element of the commission of the offence was unduly lenient”.[7]

22.  Ms Ko also submitted in support of the judge’s sentence the cases of HKSAR v Mbugua James Waigwa[8] and HKSAR v Koshuma Godfrey Gadiel[9].  In the former, a starting point of 20 years’ imprisonment enhanced by 1 year for the international element for 610.67 grammes of heroin was upheld by the Court of Appeal.  In the latter, a starting point of 21 years’ imprisonment with an enhancement of 1 year for the international element for 710 grammes of heroin was also upheld on appeal.

Discussion

23.  We have carefully examined the judge’s Reasons for Sentence and can detect no error of legal principle in them.  Nor can we detect any error in the judge’s application of the relevant legal principles on which he directed himself.  The starting point of 20 years’ imprisonment is entirely consistent with other sentences imposed for this quantity of heroin.

24.  The applicant’s main complaint is in respect of the period of one year by which the judge enhanced his 20 years starting point to allow for the aggravating factor of the drugs being trafficked across international borders.  However, there is nothing wrong with the period that the judge adopted and it does not become wrong by reference to different periods that different judges have adopted in other cases.

25.  In HKSAR v Abdallah[10]the Court of Appealsaid that in drug trafficking cases the sentencing judge should, after adopting an appropriate starting point within the relevant sentencing band, enhance that starting point to allow for the presence of any aggravating factor.  It listed a number of such factors, the most commonly encountered of which is that an international element is involved.  As to the amount of the enhancement the Court of Appeal said at paragraph 43 of its judgment:

“We do not envisage that the enhancement, for any of the reasons we have itemised, for amounts above 1 kilogramme will be less than 2 years’ imprisonment in addition to the new guideline tariffs we have set out.”

26.  This statement left out any mention of the degree of enhancement for quantities of drug less than 1 kg and the consequence was that it became a matter for each judge to exercise his discretion in this area.[11]

27.  Enhancement by 12 months for quantities between 600‑700 grammes have been regularly imposed by sentencing judges and regularly approved by the Court of Appeal.

28.  The cases on which the applicant relies do not necessarily contradict this.  In the applicant’s first case, HKSAR v Kharim Mohamed Omari, the enhancement was only 6 months for a quantity of 659.33 grammes, but the judgment of the sentencing judge explains why he was treating the defendants before him more leniently.  Nothing said in that judgment is of any benefit to the applicant.  In his second case, HKSAR v Rado Mary Litren Adhiambo, it is true that the sentencing judge only enhanced the starting point for 671.05 grammes of heroin by 6 months.  But, as Ms Ko pointed out, the Court of Appeal said that this was unduly lenient.  In the applicant’s third case, HKSAR v Fernando Mendes, the amount of heroin trafficked was 649.94 grammes and the judge recognized that the appropriate enhancement was 1 year.  However, as a result of matters advanced by the defendant’s counsel, the judge decided to reduce the enhancement to 6 months only.   

29.  The cases on which the applicant relies show no more than that other defendants have been treated more leniently than himself.  Sometimes the reason for the leniency is apparent, at other times it is not.  But simply because other defendants have been treated differently from the applicant does not mean that the applicant was treated unfairly and even less does it mean that he was treated erroneously.   

30.  As this court has said on many occasions an important sentencing goal in drug trafficking cases is to achieve consistency in the sentences imposed.  But, prisoners must understand that consistency in sentencing is not synonymous with identical sentencing.  The fact that one sentence is not identical with another does not mean that the sentencing process is tainted by unfairness and that the outcome of the sentencing process is an unjust sentence.[12]   That is why simply identifying cases in which the sentencing judge adopted, usually without explanation, a course different from that adopted by the sentencing judge in the applicant’s case will not assist an applicant for appeal.  

31.  What an applicant must be able to show in order to succeed on appeal, is error by the trial judge.  The Court of Appeal determines the question of whether a sentence is a just sentence by determining whether the judge has fallen into error in the course of performing his sentencing task.  This is approached by examining whether the judge correctly directed himself on the relevant sentencing principles and any higher court guideline cases relevant to the offence with which he is dealing; by whether, in applying these relevant sentencing principles or guideline cases he has erred in any way; by whether he has made any error in his consideration of the material before him and in his assessment of the seriousness of the offence and the culpability of the defendant; and finally by standing back and assessing whether, notwithstanding the absence of any apparent error by the sentencing judge, the sentence imposed is so outwith the range of sentences normally imposed for the offence that it can be said to be manifestly excessive.  In this respect it must always be remembered that in the assessment of a defendant’s culpability the sentencing judge will usually have an advantage over an appellate court and that the determination of a just sentence is, in the final result, an exercise of judicial discretion.

32.  There is no merit in any of the applicant’s complaints.

Conclusion

33.  Being satisfied that, should we refuse the application for an extension of time in why to apply for leave to appeal, we would not be shutting out a substantial and plainly arguable ground of appeal, we refuse the application.

[1] [2009] 2 HKLRD 437

[2] (2006) 9 HKCFAR 614

[3] R v Wong Kai Kong & Anor [1990] 1 HKC 279

[4] HCCC 265/2011, unreported, 16 January 2012.

[5] HCCC 421/2009, unreported, 17 June 2010.

[6] HCCC 200/2010, unreported, 11 August 2010.

[7] HKSAR v Rado Mary Litren Adhiambo CACC 143/2014, unreported, 12 December 2014.

[8] CACC 188/2009, unreported, 14 May 2010.

[9] CACC 342/2009, unreported, 18 June 2010.

[10] [2009] 2 HKLRD 437

[11] Guidance for quantities of drugs below 1 kg was ultimately provided by the Court of Appeal on 2 July 2014 in its judgment in HKSAR v Chung Ping Kun [2014] 6 HKC 106.  In that case it said that for an amount of 500-1,000 grammes the enhancement should be 1-2 years.

[12] See the discussion by the Court of Appeal on the issue of disparity of sentencing in HKSAR v Ng Man Yee [2014] 4 HKC 241.